01 January 2012

Political Theory, Lochner And Health Care Reform

The political science literature, as Seth at Enik Rising has pointed out once or twice, is clear on the point that in democracies the electorate will almost invariably throw the bums out when the economy goes bad acting as "referendum voters" without regard to whether the policies of those who were in power in the past, or for the future, were the best or the worst available under the circumstances. If a party with one agenda is in power in one place and is in opposition in another that experience the same tough recession to the same degree, at the next election they will find their places reversed in free and fair democracies.

President Obama's election and the unusually strong coat tails he secured in Congress in 2008 that it made it politically possible to pass health care reform, coming just as it had become clear that the financial crisis had thrust us in the worst recession since the Great Depression squarely fits this model. The setbacks Democrats suffered in Congress in 2010 likewise reflect to a great extent the fact that this economic downturn had not yet resolved itself.

This political reality, while it may seem sensible at first blush as a natural law of cause and effect that democracy is designed to secure, makes even less sense when we come to terms with the already established proposition that nobody within any power in economic policy circles of any partisan stripe in the world knows any politically palatable way to stop recessions from happening entirely. Even if those in power share some little amount of blame for an economic downturn, it is almost certainly not mostly the fault of the people who are in power when it happens. Nobody tries to screw up the economy knowing the clear political consequences of doing so, and nobody is smart enough to prevent recessions for long, even with all of their best efforts to do so.

This problem is not easily solved. It isn't something that can be cured with mere campaign finance rules or voting systems that more accurate represent public sentiment or reforms in the structure of the media that are anything short of draconian and massively undemocratic.

This dilemma, like many other in alleged flaws of the political system in political science, is also both a bug and a feature. While the way voters act in recessions and the policy positions of the people they displace in the elections that follow are not logically connected, the inevitability of recessions helps insure that any democracy that can manage to remain reasonably free and fair will see some rotation in political control even if substantial efforts are made, for example, as the ruling party in Hungary is trying to right now, to bias the scales of the electoral process in their own favor.

Even if the bums who were thrown out were mostly doing the best they could have done under the circumstances, it is unlikely that every part of their agenda was optimal, and it is likely that opposition parties who want to stay in power will devote a disproportionate share of their reform efforts to the things that the faction previously in power was doing worst and that was a result the most obvious. Thus, those parts of the old regime agenda that were most rotten are likely to be corrected as a result, as a happy coincidence of the recession, even if the recession itself had nothing to do the worst policies of the old regime that are subsequently reformed.

Health care reform fits this mold as well. No credible economist has seriously argued that flaws in the health care system were an important cause of the financial crisis or the recession that followed it. But, there is good reason to believe that long term and increasingly important problems in the health care system that the health care reform billed addressed were one of the worst Republican policies of the old regime that Democrats were newly empowered to address.

The trick, which the situation in Hungary has recalled to memory, is to figure out how to prevent a momentary referendum vote to give the new regime such expansive powers that the fix things that aren't broken willy nilly just because they can and perhaps to abandon democracy itself for an inferior alternative entirely.

The Lochner court (a name for a particular set of justices of the U.S. Supreme Court in the 1930s), which invalidated a great deal of New Deal legislation (for example, the Public Works Administration which my daughter is looking into as part of her National History Day project), until it became clear that FDR had entirely outflanked them politically (at a great political price), was probably dead wrong if you view their anti-progressive decisions from the point of view of their appropriateness on the merits as doctrines of constitutional law, despite current high profile libertarian and conservative legal efforts to restore some of the Lochner doctrines to respectability in the hope of creating an intellectual argument that conservative judges can used to restrain legal economic policies like the health care reform passed by President Obama and Congress, which as a matter of mainstream precedents in constitutional law for the last seventy years are obviously constitutional.

On the other hand, if you channel constitutional law professor Lawrence Tribe, whose constitutional law jurisprudence has focused on the role of constitutional law doctrines from the perspective of whether they enhance or detract from the larger systemic interests involved in maintaining the democratic order, there is room to look at the Lochner court conservative activism more charitably. In a Tribesque analysis, one can see the Lochner court as a device to prevent a political party in one of those rare moments when it had achieved supermajority status as a result of an economic crisis which supermajority status had no necessary political connection to the substantive merits of its laws it passed in response to the crisis, from enacting reforms because it could, rather than because they actually cured something that Hoover was doing wrong.

Indeed, in a Tribesque analysis, both the Lochner court's initial invalidation of the boldest New Deal reforms, and their subsequent decision to relent in response to a court packing threat from FDR that had made at considerable cost to his own popularity and political clout, fit this democracy oriented analysis. The full extent of the proposed New Deal reforms was effectively put on hold pending an opportunity for the electorate to evaluate the new administration's policies after they had revealed their true agenda to the voters while governing and campaigned for re-election on that basis in the face of an ongoing recession. The political price they extracted for their "switch in time" had the effect of forcing FDR to show that he was sincere and intense in his desire to enact the sweeping reforms to the scope of government that he enacted. And, the Lochner court and later Supreme Court rulings ultimate concession of the merits of the dispute on the scope of federal government power to tax, to spend and to regulate economic activity in a nearly plenary manner, acknowledged that ultimately, the United States Constitution creates a democratic system of government in which the public will, sufficiently persistently and clearly expressed in ways that are not a direct threat to democracy itself, is to be left to the direction of the representatives who are elected by the people and not to courts full of lifetime appointees establishing entrenched constitutional law doctrines.

In a sense, politically, one can fit the Lochner court's approach to the template of the role played by the British House of Lords and Canadian Senate whose conservative majorities slowed, but did not hold an ultimate veto over bold and controversial reforms by the regime currently in power. Delay matters when means that a legislative decision will have electoral consequences that it make have lacked if it had been elected quickly during a new ruling party's political honeymoon.

This analysis makes a few aspects of health care reform particular salient to the courts interpreting it now, as sympathetic conservatives who thinly control the federal judiciary, but also have respect for the institutions that they serve apart from partisan ones, are being urged to readopt Lochner-like doctrines to invalidate it.

First, the 2014 effective date of health care reform makes its considerably less troubling than the earliest bold New Deal reforms that the Lochner court invalidated. Two general elections for Congress, and one for the President will have intervened before the bulk of its provisions, including the most fervently contested ones, before it takes effect. Opponents will have had ample time to make their case to an electorate in a debate over a law about which the devils in the details have already been established before the law takes effect. The law will have been made an issue in both elections and according to Seth at Enik Rising, in part in reliance on his political science colleagues and in part from his own analysis, this one issue was the single most important issue in predicting voter behavior in the first of these elections. Doctrinally, if the case is viewed in a political process lens, the U.S. Supreme Court might be well advised to refrain from ruling on the constitutionality of the law on the theory that the parties complaining lack standing and that the issue is not yet ripe, thus allowing the political process to play out in the 2012 and 2014 elections before the bulk of the law takes full effect. Is there really a case or controversy concerning any provision of a law whose effective date has not yet arrived and is not imminent?

Second, while the Democrats briefly controlled the Presidency, the House of Representatives, and a near filibuster proof majority in the U.S. Senate, when they passed health care reform, they never managed to secure enough political power to entrench their actions in either constitutional amendments or laws that entrenched their political power. Indeed, they suffered setbacks that restored an effective Republican filibuster and Republican control of the House of Representatives in the very next election. Health care reform is a classic pure economic policy issue. It does not change the political process at all in the way that a law related to the conduct of federal elections, or campaign finance, or qualifications to hold public office, or a law that created federal offices will long terms of office appointed before the next Presidential election might.

Third, it is reasonable to conclude that GOP opposition to the underlying policies enacted, if you are informed enough to know what those policies actually involved when the bill was ultimately passed, is largely an insincere political tactic rather than a genuine objection to the merits of the law itself.

The fact that the opposition to the policy is largely partisan itself, is probably immaterial. Most policy disputes are partisan and some of those policy disputes have constitutional dimensions anyway.

But, the law was very close to proposals of two of the leading candidates for the GOP Presidential nomination right now, Mitt Romney and Newt Gingrich. Another GOP Presidential nominee candidate, Ron Paul, was a member of Congress at the time the bill was enacted who was personally and intimately involved in the political negotiations that gave rise to the bill ultimately enacted, even if the ultimate result was not to his liking, and the credibility he commanded as one of the only medical doctors in Congress gave him credibility on this issue at the level of details well beyond his formal political authority, despite his overall opposition to the bill.

If Romney wins the 2012 general election, and he is probably the only Republican Presidential nomination candidate with a plausible chance of doing so, it wouldn't be at all surprising to see him modify a few of the most controversial details of the health care reform law that so closely mirrors what he backed in his own state to save face (e.g. by modifying the "mandate" to buy health insurance in form and replacing it with some more palatable alternative), and to let the bulk of the law including most of substance of its most importance provisions take effect anyway.

Any constitutional challenge to a law must make a credible intellectual claim, at least in public discourse, to being not just sincerely held, but fundamental to our very system of governance. The more openly an idea has been tossed around by both parties in a two party system without strong concerns being voiced about their constitutionality from the outset, the harder it is to make the moral and intellectual claim that the interest allegedly infringed is really so fundamental that it takes on a constitutional dimension. Judicial modesty demands that the courts not resolve mere disputes of plain vanilla economic policy if that is really all that they amount to in the end.

Thus, if one evaluates the constitutional law decision that faces the U.S. Supreme Court when it rules on the constitutionality health care reform law passed by Congress after the 2008 election from the perspective of constitutional jurisprudence as a means of preserving democracy, the health care reform law is a law that the Supreme Court would be ill advised to strike down. And, indeed, it would be best if the U.S. Supreme Court could defer a decision on the constitutional merits of the law's validity as long as possible, to allow the democratic process to continue to play out.